Connelly v. Doe

• Decision Date: 28 November 1989
• Docket Number: No. 13707,13707
• Citation: 566 A.2d 426,213 Conn. 66
• Court: Connecticut Supreme Court
• Parties: John A. CONNELLY, State's Attorney v. John DOE, M.D.

Page 426

566 A.2d 426

213 Conn. 66

John A. CONNELLY, State's Attorney v. John DOE, M.D.

No. 13707.

Supreme Court of Connecticut.

Argued Oct. 5, 1989.

Decided Nov. 28, 1989.

Syllabus by the Court

1. The plaintiff state's attorney sought to have the defendant psychiatrist found in contempt for his failure to comply with a subpoena duces tecum issued by a one-man grand jury appointed in November, 1983, to investigate possible fraud, corruption and patient abuse involving medicaid providers. The subpoena was directed to the period from January 1, 1985, through September 30, 1987. The defendant moved to quash the subpoena claiming, inter alia, that the grand jury was not authorized to investigate his activities for the period in question because it was limited, by the order that created it, to investigating events that preceded its empaneling. The trial court granted the defendant's motions to quash the subpoena and to dismiss the contempt citation, and the plaintiff, on the granting of permission, appealed. Held that the trial court did not err in limiting the scope of the grand jury inquiry to activity that preceded its empanelment; because an investigatory grand jury has no common law power, its powers necessarily are limited by the language of the enabling statute (§ 54-47[b] [Rev. to 1983] pursuant to which it was created, and the plain language of that statute and of the court order empaneling the grand jury here authorized investigation into past conduct only.

2. There was no merit to the defendant's claim that the plaintiff's appeal should have been dismissed for failure to file appeal papers within the time specified by the rules of practice (§ 4056); the time specified for filing an appeal is not jurisdictional.

Timothy J. Sugrue, Deputy Asst. State's Atty., with whom, on the brief, was David E. Sullivan, Asst. State's Atty., for appellant (plaintiff).

Richard L. Albrecht, with whom, on the brief, was Jeremiah R. Dineen III, Bridgeport, for appellee (defendant).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and COVELLO, JJ.

COVELLO, Associate Justice.

This appeal arises out of proceedings before a one-man investigatory grand jury authorized by General Statutes (Rev. to 1983) § 54-47(b). ¹ The dispositive issue is whether the investigatory grand jury in question was limited, by the order that empaneled it, to investigate only those events that predated its empaneling. Because the plain language of both the court order and the relevant enabling statute authorized investigation into past conduct only, we conclude that the trial court did not err in limiting the scope of the grand jury inquiry to alleged criminal activity that predated its empanelment.

The relevant facts are not in dispute. On November 18, 1983, pursuant to General Statutes (Rev. to 1983) § 54-47, the chief court administrator appointed Honorable James F. Henebry to investigate fraud, corruption and patient abuse involving medicaid providers. ² The order creating the grand jury stated "that an inquiry be made to determine whether there is probable cause to believe that a crime or crimes within the jurisdiction of the superior court have been committed ...." (Emphasis added.) In November, 1987, four years later, the grand jury subpoenaed the defendant, ³ a psychiatrist and medicaid provider, to testify before it and to produce certain records pertaining to medicaid recipients for the period from January 1, 1985, through September 30, 1987. The parties agree that none of the information sought dealt with any alleged criminal acts that occurred prior to the November 18, 1983 empaneling of the grand jury. The defendant refused to comply with the subpoena. On January 20, 1988, the plaintiff, pursuant to General Statutes (Rev. to 1983) § 54-47(e), obtained a citation directing the defendant to appear and show cause why he should not be found in contempt. ⁴

At the hearing on the contempt citation, the defendant moved to quash the subpoena and to dismiss the contempt action, claiming, inter alia, that the grand jury was not lawfully empowered to investigate his activities for the period in question (January 1, 1985, through September 30, 1987). On June 8, 1988, by memorandum of decision, the trial court granted both of the defendant's motions on the ground that the grand jury was limited, by the order that created it, to investigating events that predated its empaneling. The trial court subsequently granted the state permission to appeal to the Appellate Court. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023. ⁵

Indicting grand juries have long existed at common law, and this court has held that the state's attorney in such a setting has both common law and statutory authority to subpoena defendants to testify before the grand jury. See, e.g., State v. Morrill, 197 Conn. 507, 514, 498 A.2d 76 (1985). In comparison, the one-man investigatory grand jury is purely a creature of statute, authorized pursuant to General Statutes (Rev. to 1983) § 54-47, as amended. See State v. Blasko, 202 Conn. 541, 545-551, 553-55, 522 A.2d 753 (1987); In re Investigation of the Grand Juror, 4 Conn.App. 544, 549-50, 556, 495 A.2d 1098 (1985), appeal dismissed, 203 Conn. 1, 522 A.2d 1228 (1987). The investigatory grand jury has broad statutory authority to inquire into criminal activity and to report its findings to the court for possible prosecution of those responsible for such activity. In re Final Grand Jury Report Concerning the Torrington Police Department, 197 Conn. 698, 707, 501 A.2d 377 (1985); In re Investigation of the Grand Juror into the Bethel Police Department, 188 Conn. 601, 603, 452 A.2d 935 (1983); see also State v. Blasko, supra, 202 Conn. at 555, 522 A.2d 753.

Because the investigatory grand jury has no common law power, its powers necessarily are limited by the language of the enabling statute which authorizes its creation. General Statutes § 54-47 was enacted in 1941 as § 889f (1941 act). ⁶ The pertinent language of the statute describing the scope of the investigation remained unchanged until § 54-47 was repealed in 1985. ⁷ In 1983, the act authorized the grand jury to conduct an "investigation to determine whether or not there is probable cause to believe that a crime or crimes have been committed within the judicial district...." (Emphasis added.) General Statutes (Rev. to 1983) § 54-47(a).

The unequivocal and persistent use of the past tense in the enabling legislation manifests a clear legislative intent that the investigatory grand jury is limited in scope to investigation of past conduct only. The statute contains no language authorizing the investigation of "ongoing" or "continuing" activity. Had the legislature intended the investigatory grand jury to have continuing authority as to the scope of its inquiry, it could have provided so expressly, as other state legislatures have done. See, e.g., Commonwealth v. Bradfield, 352 Pa.Super. 466, 508 A.2d 568 (1986). ⁸ Our conclusion is further supported by the legislature's enactment of the 1985 act, which sought to preclude any possibility that an investigative grand jury empaneled thereafter could be deemed to have authority of an ongoing or continuous nature. ⁹

The relevant language of both the authorization order and the enabling statute is identical. ¹⁰ As General Statutes (Rev. to 1983) § 54-47 provided, the order does not direct that an investigation be conducted into criminal activity occurring subsequent to November 18, 1983, but rather "to determine whether there is probable cause to believe that a crime or crimes within the jurisdiction of the Superior Court have been committed ...." (Emphasis added.)

In the instant case both the enabling legislation and the court order are clear and unequivocal and cannot be extended beyond their plain meaning. See General Statutes § 1-1(a); Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987); State v. Parmalee, 197 Conn. 158, 161, 496 A.2d 186 (1985).

Criminal investigations by their nature are customarily directed at past conduct, and one-man grand jury investigations pursuant to § 54-47 are similarly retrospective. The clear and unequivocal meaning of the court order authorizing creation of Judge Henebry's investigative grand jury, issued in the past tense, is that the grand jury is limited by that order to investigating only those events that predated the

order. ¹¹

There is no error.

In this opinion the other Justices concurred.

1 General Statutes (Rev. to 1983) § 54-47(b) provided: "The chief state's attorney and the deputy chief state's attorney may also apply to the chief court administrator for an order that an inquiry be made to determine whether or not there is probable cause to believe that a crime or crimes have been committed. If the chief court administrator is satisfied from the application and any other papers or evidence submitted in support thereof that the administration of justice requires such an inquiry, he shall order that it be made and shall appoint a judge, a state referee or any three judges of the superior court to conduct the inquiry, with the assistance of the chief state's attorney, deputy chief state's attorney or any state's attorney or assistant state's attorney."

2 This grand jury is a continuation of the investigatory inquiry that was first convened in September, 1979. It is currently the only one-man grand jury operating under the authority of General Statutes (Rev. to 1983) § 54-47, which has since been repealed. Judge Henebry was appointed to relieve Judge Joseph A. Adorno.

3 On January 19, 1988, the trial court sealed the file in the instant proceeding in order to protect the secrecy of the grand jury and the identity and reputation of the defendant.

4 General Statutes (Rev. to 1983) § 54-47(e) provided: "If any witness properly summoned fails to appear or to produce any documents included in the subpoena, or if he fails to answer...